RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01892
BRANCH OF SERVICE:  Army	BOARD DATE:  20140829
SEPARATION DATE:  20040616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (35N/Wiring Systems Equipment Repair) medically separated for a lumbar spine condition; which could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar condition, characterized as “mechanical low back pain (LBP), chronic,” was forwarded as the sole condition to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain, without neurologic abnormality” as unfitting, rated at 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The application states, “VA found disability rating to be higher with a more descriptive diagnosis.  Injury has worsened since rating was awarded.”  Specific features of her current condition and the limitations it imposes on her quality of life were further elaborated.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting LBP condition is addressed below, and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the worsening impairment with which her service-connected condition burdens her; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

RATING COMPARISON:

Service IPEB – Dated 20131015	VA (5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain...	5299-5237	10%	Lumbosacral Strain/Sacroiliac DJD	5295	20%	20040614	
Other x 0 (Within Scope) 	Other x 4	20040614	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20040928 (most proximate to date of separation)

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The CI suffered a motor vehicle accident on 9 June 2002 and the earliest entry in the service treatment record (STR) is a military emergency room visit the following day documenting a complaint of neck and back pain.  There was no evidence of neurological injury; X-rays were normal and, she was treated conservatively over the ensuing months.  Follow-up STR entries document continuing pain and a temporary L3 profile was issued in November 2002.  A comprehensive physical therapy (PT) note in March 2003 (14 months prior to separation) documents full range-of-motion (ROM) and detailed normal neurological findings.  Additional entries over the ensuing months likewise document grossly normal ROM and normal neurologic findings.  Magnetic resonance imaging in August 2003 was normal; although an orthopedic diagnosis of “facet arthropathy” (dysfunction of vertebral attachment processes, possibly from degenerative changes) was documented.  The CI did not complain of significant neurological symptoms and surgery was not recommended.  The last orthopedic note in the STR is from December 2003 (6 months prior to separation) and documents grossly normal ROM with normal strength and neurological findings.  There are no STR entries documenting abnormal ROM, gait disturbance, abnormal spinal contour or neurologic abnormalities; although, painful motion is documented.  An incidental finding was a slight disparity in leg length (congenital) which may have contributed to the back pain and, there was some, but inadequate, improvement with a heel lift prescribed by podiatry.

Formal ROM measurements were performed 5 months prior to separation for the MEB by PT, and documented flexion of 90 degrees (normal) with combined ROM of 240 degrees (normal).  The narrative summary noted persistent pain “which significantly limits her physical Army activities,” with a “slight to moderate” pain rating; and, made no note of neurological symptoms.  The physical exam documented paravertebral and left sacroiliac tenderness without comment on gait, spasm or spinal contour.  Normal neurologic findings were documented, and the PT ROM measurements were cited.  

VA Compensation and Pension (C&P) examinations were performed 5 months after separation and evidence is provided from separate fairly cursory general, spine and neurological evaluations.  The back pain was described as “severe constant,” and exacerbated by “over exertion or day-to-day activities such as lying down, picking up stuff.”  Radiation, weakness, or other neurological symptoms were denied; and, no interim trauma or other aggravation since separation were documented.  The VA physical exams noted a normal gait, without comment on spasm or tenderness, and 5/5 strength with normal neurological findings.  The VA ROM measurements were flexion to 60 degrees and extension to 30 degrees (normal), both decreased by 10 degrees with repetition and without documentation of lateral flexion or rotation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated analogously to 5237 (lumbar strain), cited the VASRD §4.71a criterion of tenderness for its 10% rating (in the face of the normal MEB ROM measurements).  The VA’s decision cited the spinal C&P flexion of 60 degrees as the §4.71a criterion for a 20% rating.  The Board deliberated the probative weight of the disparate MEB and VA ROM evidence as the basis for its recommendation.  It was noted that the MEB ROM measurements were well corroborated by the contemporary STR evidence and, the VA flexion of 60 degrees was neither corroborated by other exams nor clinically correlated.  The VA evaluation also suffered in probative value because of incomplete ROM measurements and failure to document other ratable findings.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case which would provide for additional or higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131015, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXX, AR20150006960 (PD201301892)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						 
CF: 
(  ) DoD PDBR
(  ) DVA